Pursuing America's Greatness v. Federal Election Commission , 831 F.3d 500 ( 2016 )

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued February 23, 2016 Decided August 2, 2016
No. 15-5264
PURSUING AMERICA’S GREATNESS,
APPELLANT
v.
FEDERAL ELECTION COMMISSION, OFFICE OF GENERAL
COUNSEL,
APPELLEE
Appeal from the United States District Court
for the District of Columbia
(No. 1:15-cv-01217)
Jason Torchinsky argued the cause and filed the briefs for
appellant.
Christina M. Martin was on the brief for amicus curiae
Pacific Legal Foundation and James Madison Center for Free
Speech in support of plaintiff-appellant.
Charles Kitcher, Attorney, Federal Election
Commission, argued the cause for appellee. With him on the
brief were Daniel A. Petalas, Acting General Counsel, Kevin
Deeley, Acting Associate General Counsel, and Erin Chlopak,
Acting Assistant General Counsel.
2
Before: GRIFFITH and KAVANAUGH, Circuit Judges, and
RANDOLPH, Senior Circuit Judge.
GRIFFITH, Circuit Judge: The Federal Election
Commission prohibits unauthorized political committees, like
Pursuing America’s Greatness, from using candidates’ names
in the titles of their websites and social media pages. Pursuing
America’s Greatness sought a preliminary injunction against
this rule, which the district court denied. We reverse the
district court because the restriction, as applied to Pursuing
America’s Greatness, is a content-based ban on speech that
likely violates the First Amendment.
I
Pursuing America’s Greatness (PAG) is a political
committee that works for the election of federal officeholders.
As a political committee, PAG must comply with the Federal
Election Campaign Act (FECA), 52 U.S.C. §§ 30101-26,
30141-46, and the FEC’s implementing regulations. This case
deals with one set of those rules: naming restrictions for
political committees.
FECA creates two baskets of naming restrictions, one for
committees that are “authorized” by a candidate to receive or
spend money on his behalf, and another for committees that
are not so authorized. Id. § 30101(6) (defining “authorized
committee”). An authorized committee must use the
candidate’s name in its name. Id. § 30102(e)(4). Unauthorized
committees may not. Id. PAG is an unauthorized committee
and cannot include any candidate’s name in its own name. To
illustrate the difference, consider two committees that
supported the presidential bid of former Governor Mike
Huckabee this election cycle. Huckabee’s authorized
committee is called “Huckabee for President.” In contrast,
3
Huckabee’s name appears nowhere in PAG’s name, even
though PAG also supported the former Governor’s bid.
Although FECA’s naming rules reach only committee
names, the FEC also restricts the names of committee
projects. 11 C.F.R. § 102.14(a) (extending FECA’s naming
requirements to “any name under which a committee conducts
activities, such as solicitations or other communications,
including a special project name”). According to the FEC, a
committee’s projects include online projects, such as websites
or social media pages. See FEC Advisory Op. 2015-04, 2015
WL 4480266, at *2 (July 16, 2015); FEC Advisory Op. 1995-
09, 1995 WL 247474, at *5 (Apr. 21, 1995). The naming
restrictions apply whether or not a committee’s project
involves fundraising, because the FEC sees the “potential for
confusion” as “equally great in all types of committee
communications.” FEC Advisory Op. 2015-04, 2015 WL
4480266, at *2 (quoting Special Fundraising Projects and
Other Use of Candidate Names by Unauthorized Committees,
57 Fed. Reg. 31,424, 31,425 (July 15, 1992)).
But the FEC does not apply these rules to all committee
projects. There is an exception that allows unauthorized
committees to use candidate names in titles that “clearly and
unambiguously” show opposition to the named candidate, 11
C.F.R. § 102.14(b)(3), because “the potential for fraud and
abuse is significantly reduced.” Special Fundraising Projects
and Other Use of Candidate Names by Unauthorized
Committees, 59 Fed. Reg. 17,267, 17,269 (Apr. 12, 1994).
For instance, the FEC gave the example of a project titled
“Citizens Fed Up with Doe.” Id. There would be little risk
that the public would think candidate Doe authorized the
project’s work.
4
Which brings us to the instant dispute. To support
Governor Huckabee’s most recent run for the White House,
PAG used a website and a Facebook page named “I Like
Mike Huckabee,” which PAG worried would run afoul of the
FEC’s naming rules. PAG sought a preliminary injunction to
prevent the FEC from enforcing those rules, invoking the First
Amendment and the Administrative Procedure Act. The
district court denied PAG’s motion. Pursuing America’s
Greatness v. FEC, 132 F. Supp. 3d 23, 44 (D.D.C. 2015).
PAG timely appealed, and we have jurisdiction under 28
U.S.C. § 1292(a)(1). We reverse the district court, concluding
that PAG is entitled to a preliminary injunction because there
is a substantial likelihood that, as applied to PAG, the FEC’s
naming restrictions in section 102.14(a) violate the First
Amendment.
II
At the outset, we must address two threshold issues. First,
the FEC contends that PAG lacks a continuing interest in this
case because Governor Huckabee has suspended his
presidential campaign and PAG may now use his name in its
online activities. Because our jurisdiction is limited to live
cases or controversies, U.S. CONST. art. III, § 2, cl. 1, we
cannot “retain jurisdiction over cases in which one or both of
the parties plainly lack a continuing interest.” Friends of the
Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167,
192 (2000); Calderon v. Moore, 518 U.S. 149, 150 (1996)
(per curiam) (“[A]n appeal should . . . be dismissed as moot
when, by virtue of an intervening event, a court of appeals
cannot grant ‘any effectual relief whatever’ in favor of the
appellant.” (citation omitted)).
5
We disagree with the FEC. Governor Huckabee is not the
only candidate that PAG hopes to support this cycle. Rather,
PAG intends to use the names of candidates still running for
federal office in the titles of several other websites and
Facebook pages. For example, PAG will use the title “I Like
Kelly Ayotte” in its online support for Senator Kelly Ayotte
and similar titles for Senator Richard Burr and Congressman
David Young. Although the FEC argues that PAG has not
financially supported Senator Ayotte, Senator Burr, or
Congressman Young as it did Governor Huckabee, PAG’s
expenditures are irrelevant to PAG’s interest in this case: its
ability to operate websites and social media pages with titles
forbidden by the FEC. PAG’s intent to continue violating
section 102.14(a) keeps this case alive. Cf. Unity08 v. FEC,
596 F.3d 861, 864 (D.C. Cir. 2010) (holding that controversy
was not moot even though group stopped participating in
2008 election because group had a “clear and definite intent to
resume its activities . . . for the 2012 presidential election”).
We also conclude that PAG has standing to challenge
section 102.14. To have standing, PAG must show, among
other things, that its injury will be redressed by a favorable
decision. See Lujan v. Defenders of Wildlife, 504 U.S. 555,
560-61 (1992). PAG asks us to redress its injury by striking
section 102.14’s naming restrictions, which prevent PAG
from using candidate names as it would like. The FEC recasts
PAG’s challenge, however, as contesting only a subset of
section 102.14. The agency argues that enjoining the FEC
from enforcing only that subset would not redress PAG’s
injury because the remaining portions of section 102.14
would still prevent PAG from using candidate names in its
project titles. But the FEC is incorrect that PAG’s challenge
targets only a portion of section 102.14. Instead, PAG has
clearly asked us to enjoin the FEC from enforcing the entirety
of section 102.14 against it. Were we to grant PAG that relief,
6
its injury would undoubtedly be redressed. As a result, PAG
has standing.
III
To receive the “extraordinary remedy” of a preliminary
injunction, PAG must make a “clear showing” that four
factors, taken together, warrant relief: likely success on the
merits, likely irreparable harm in the absence of preliminary
relief, a balance of the equities in its favor, and accord with
the public interest. Winter v. Nat. Res. Def. Council, Inc., 555
U.S. 7, 20, 22 (2008); see also Davis v. Pension Benefit Guar.
Corp., 571 F.3d 1288, 1291-92 (D.C. Cir. 2009). We review
the district court’s weighing of these factors for abuse of
discretion, but its legal conclusions de novo. Davis, 571 F.3d
at 1291.
A
PAG has shown a substantial likelihood of success on the
merits of its First Amendment claim. 1
1
We need not resolve here any tension in the case law regarding
the showing required on the merits for a preliminary injunction.
Compare Winter, 555 U.S. at 20 (requiring the plaintiff to show
“likely” success on the merits), with Sottera, Inc. v. FDA, 627
F.3d 891, 893 (D.C. Cir. 2010) (requiring the plaintiff to show
“substantial likelihood” of success on the merits). PAG meets either
standard. And, because PAG has shown a substantial likelihood of
success on the merits, we need not decide whether showing a
“likelihood of success” is “an independent, free-standing
requirement, or whether, in cases where the other three factors
strongly favor issuing an injunction, a plaintiff need only raise a
serious legal question on the merits.” Aamer v. Obama, 742 F.3d
1023, 1043 (D.C. Cir. 2014) (internal quotation marks omitted).
7
i
Before we reach PAG’s First Amendment arguments, we
first consider whether PAG’s alternative APA claim has
merit. See Lyng v. Nw. Indian Cemetery Protective Ass’n, 485
U.S. 439, 445 (1988) (“A fundamental and longstanding
principle of judicial restraint requires that courts avoid
reaching constitutional questions in advance of the necessity
of deciding them.”). It does not.
PAG argues that the FEC violated the APA in extending
section 102.14(a)’s naming rules to websites and social media
pages that do not involve fundraising. Specifically, PAG
challenges the FEC’s 2015 advisory opinion, which
announced that interpretation. See FEC Advisory Op. 2015-
04, 2015 WL 4480266, at *2-3 (July 16, 2015). PAG grounds
its challenge in the APA’s prohibition on agency action that is
arbitrary, capricious, an abuse of discretion, or contrary to
law. 5 U.S.C. § 706(2)(A). PAG argues that in extending the
reach of section 102.14 to websites and social media pages
that lack any connection to fundraising, the FEC’s advisory
opinion strays beyond the underlying regulation’s purpose.
According to PAG, section 102.14 sought only to avoid fraud
in fundraising, a risk not present here.
In issuing the advisory opinion, the FEC interpreted
section 102.14, its own regulation. We give “substantial
deference” to an agency’s interpretation of its own regulation,
Thomas Jefferson Univ. v. Shalala, 512 U.S. 504, 512 (1994),
and we will accept the agency’s view unless it is “plainly
erroneous or inconsistent with the regulation.” Decker v. Nw.
Envtl. Def. Ctr., 133 S. Ct. 1326, 1337 (2013) (quoting Chase
Bank USA, N.A. v. McCoy, 562 U.S. 195, 208 (2011)).
We conclude that the FEC reasonably applied the naming
requirements of section 102.14 to an unauthorized
8
committee’s websites and social media pages. The regulation
applies to “any name under which a committee conducts
activities, such as solicitations or other communications.” 11
C.F.R. § 102.14(a) (emphasis added). This broad language
can reasonably be read to encompass more than just
fundraising activities. See FEC Advisory Op. 2015-04, 2015
WL 4480266, at *2 (concluding that this language
“necessarily means that communications need not be
solicitations” of donations to come within section 102.14(a)).
In any event, the FEC justified extending the naming
restrictions in section 102.14 to committee projects and other
communications by more than just concern over fraud in
fundraising, including the worry that voters might be
confused whether a message is from a candidate or someone
else. See 57 Fed. Reg. at 31,424-25. The FEC emphasized that
“the potential for confusion is equally great in all types of
committee communications,” not only communications
related to fundraising. Id. at 31,425 (emphasis added).
Accordingly, we hold that PAG is unlikely to succeed on its
APA challenge. 2
ii
PAG’s First Amendment argument fares much better.
There is a substantial likelihood that section 102.14 violates
the First Amendment as applied to PAG.
2
PAG also argues that if we agree with the district court’s
conclusion that section 102.14 is a disclosure provision, we must
find that it “cannot be applied to PAG’s Facebook . . .
communications” under relevant disclosure regulations. Appellant’s
Br. 55-56. We need not reach this argument because we conclude
below that section 102.14 is not a disclosure requirement. See infra
section III.A.ii.
9
The FEC and PAG principally disagree over how strictly
we should review section 102.14. To PAG, the regulation is a
classic restriction on political speech, and we should apply
our highest presumption of illegality. See Citizens United v.
FEC, 558 U.S. 310, 340 (2010) (applying strict scrutiny); see
also 57 Fed. Reg. at 31,425 (describing section 102.14(a) as a
“ban” on speech). To the FEC, however, section 102.14 is not
a restriction on speech at all. Instead, the FEC characterizes
its rule as part of FECA’s disclosure framework. The FEC
urges that the rule gives effect to the Act’s requirement that
an unauthorized committee disclose that its communications
are “not authorized by any candidate or candidate’s
committee.” 52 U.S.C. § 30120(a)(3). We view disclosure
rules far less skeptically than we do bans on speech. See
Citizens United, 558 U.S. at 366-67.
To decide whether a law is a disclosure requirement or a
ban on speech, we ask a simple question: does the law require
the speaker to provide more information to the audience than
he otherwise would? For example, disclosure rules have
required speakers to identify those who fund their
advertisements, id. at 366, the country of origin of the meat
they sell, Am. Meat Inst. v. USDA, 760 F.3d 18, 20 (D.C. Cir.
2014) (en banc), or the total price of their airline tickets, Spirit
Airlines, Inc. v. U.S. Dep’t of Transp., 687 F.3d 403, 413-14
(D.C. Cir. 2012). See also Nat’l Ass’n of Mfrs. v. SEC, 800
F.3d 518, 524 (D.C. Cir. 2015). The Supreme Court’s
decision in Zauderer v. Office of Disciplinary Counsel of the
Supreme Court of Ohio, 471 U.S. 626 (1985), which dealt
with the regulation of commercial speech, is instructive.
There, a state disciplinary rule required attorneys who
advertise contingency-fee services to include a notice that a
client might have to pay some costs if the claim failed. Id. at
633. The challenger argued that the requirement was a ban on
commercial speech, and not a disclosure. Id. at 650. The
10
Supreme Court thought otherwise. The challenger’s argument
“overlook[ed] material differences between disclosure
requirements and outright prohibitions on speech.” Id. The
law was a disclosure, not a speech ban, in part because it did
not “prevent attorneys from conveying information to the
public.” Id. Instead, it “only required [attorneys] to provide
somewhat more information than they might otherwise be
inclined to present.” Id. 3
Following Zauderer’s logic, we do not think that section
102.14(a) compels disclosure. It does not require PAG “to
provide somewhat more information” than it otherwise would.
Id. It does not obligate PAG to say anything. Quite the
opposite. The regulation “prevent[s]” PAG “from conveying
information to the public.” Id.; see also Citizens United, 558
U.S. at 366 (“[D]isclosure requirements . . . ‘do not prevent
anyone from speaking.’” (quoting McConnell v. FEC, 540
U.S. 93, 201 (2003))).
To be sure, disclosure rules often do incidentally prohibit
speech, because the requirement to say one thing necessarily
means the speaker cannot say the opposite. FECA provides a
ready illustration. FECA requires an unauthorized committee
to explain to the public that its “communication is not
authorized by any candidate or candidate’s committee.” 52
U.S.C. § 30120(a)(3); see also id. § 30120(d)(2) (requiring
radio or television communications to state who “is
responsible for the content of th[e] advertising”). That is a
3
Zauderer also noted that “in some instances compulsion to
speak may be as violative of the First Amendment as prohibitions
on speech.” 471 U.S. at 650. We do not opine here on when the
compulsion to speak becomes more like a speech restriction than a
disclosure. Instead we make the more limited point that the
provision of information is necessary, but not sufficient, for a law
to be a disclosure.
11
garden-variety disclosure requirement: unauthorized
committees must provide more information than they
otherwise would. Yet the required disclosure also necessarily
prohibits an unauthorized committee from saying that its
communication is authorized by the candidate. For example,
when PAG announces that it is not authorized to act on a
candidate’s behalf, it cannot turn around and say that it is
authorized as well. If it did, PAG would not be disclosing the
information mandated by the statute.
But PAG has provided all the information that the FEC
and FECA require. PAG’s websites and social media pages
tell the audience that PAG is not authorized to act on any
candidate’s behalf, and the FEC does not argue that PAG says
the opposite or otherwise violates FECA’s disclosure
requirements. All PAG hopes to do is use candidate names in
the titles of its communications. Even if using a candidate’s
name in that way might make FECA’s disclosure provisions
less effective, that possibility alone neither violates FECA nor
transforms a speech restriction into a disclosure. By
prohibiting the use of a candidate’s name in the titles of
PAG’s websites and social media pages, the FEC banned
more speech than that covered by FECA’s provisions
requiring disclosure. See Catholic Leadership Coal. of Tex. v.
Reisman, 764 F.3d 409, 426-27 (5th Cir. 2014) (“[P]rovisions
that put a ceiling on speech even if a party is willing to
provide all of the information that the government requests
constitute[] something more than a simple disclosure
requirement.”). As a result, we conclude that section
102.14(a) is a restriction on PAG’s political speech, not a
disclosure requirement. 4
4
Nothing in Common Cause v. FEC, 842 F.2d 436 (D.C. Cir.
1988), or Galliano v. U.S. Postal Service, 836 F.2d 1362 (D.C. Cir.
1988), both cited by the FEC, undermines our conclusion. Although
12
The First Amendment “has its fullest and most urgent
application to speech uttered during a campaign for political
office.” Ariz. Free Enter. Club’s Freedom Club PAC v.
Bennett, 131 S. Ct. 2806, 2817 (2011) (quoting Eu v. S.F. Cty.
Democratic Cent. Comm., 489 U.S. 214, 223 (1989)). Among
restrictions on political speech, particularly troublesome are
those that are based on the content of the speech. A law
prohibiting speech that “draws distinctions based on the
message a speaker conveys” must serve a compelling interest
and be narrowly tailored to advance that interest. Reed v.
Town of Gilbert, 135 S. Ct. 2218, 2227 (2015) (applying strict
scrutiny); McCullen v. Coakley, 134 S. Ct. 2518, 2531 (2014)
(explaining that a law is content based if it “require[s]
enforcement authorities to examine the content of the message
that is conveyed to determine whether a violation has
occurred” (internal quotation marks omitted)).
On its face, section 102.14 “draws distinctions” based
solely on what PAG says. Reed, 135 S. Ct. at 2227. As an
unauthorized committee, PAG can use a candidate’s name in
a title of a communication only if the title demonstrates
opposition to the candidate. 5 In other words, to know whether
those cases characterized FECA’s naming restrictions (then
codified at 2 U.S.C. § 432(e)(4)) as part of a disclosure regime, they
did not assess the constitutionality of section 102.14. See Galliano,
836 F.2d at 1363-64, 1368; Common Cause, 842 F.2d at 439, 442.
5
Before the district court, PAG characterized its argument as an
as-applied challenge. That does not prevent us from looking at the
face of section 102.14 in determining whether it is content based.
“[T]he distinction between facial and as-applied challenges is not
so well defined . . . that it must always control the . . . disposition in
every case.” Citizens United, 558 U.S. at 331. Indeed, “[t]he
substantive rule of law is the same” for both as-applied and facial
First Amendment challenges. Edwards v. District of Columbia, 755
F.3d 996, 1001 (D.C. Cir. 2014); see Legal Aid Servs. of Or. v.
13
to apply section 102.14, the FEC must “examine the content”
of the title of PAG’s website or Facebook page and ask
whether the title supports or opposes the candidate. McCullen,
134 S. Ct. at 2531. That is content-based discrimination pure
and simple.
Citing our decision in Republican National Committee v.
Federal Election Commission, 76 F.3d 400 (D.C. Cir. 1996),
the FEC argues that section 102.14 is not content based
because it has a benign purpose: avoiding voter confusion. In
Republican National Committee, political committees
challenged an FEC regulation that required them to send
letters to their donors providing no more than certain limited
pieces of information. Id. at 403, 409. The political
committees argued that the rule violated the First Amendment
because they were not allowed to include additional speech in
the letter beyond that prescribed by the FEC. Relying upon
the Supreme Court’s decision in Ward v. Rock Against
Racism, 491 U.S. 781, 791 (1989), we upheld the rule on the
ground that it served “purposes unrelated to the content of
expression.” Republican Nat’l Comm., 76 F.3d at 409
(quoting Ward, 491 U.S. at 791). Because the FEC rule could
be justified without reference to the content of speech, we
concluded that the rule was not content based, and that it
passed muster under intermediate scrutiny. Id. at 409-10.
But since our decision in Republican National
Committee, the Supreme Court has articulated a more limited
view of the role purpose should play in our analysis. In Reed,
the Court instructed that we should look to purpose only if the
text of the law is not content based. 135 S. Ct. at 2228-29. If a
Legal Servs. Corp., 608 F.3d 1084, 1096 (9th Cir. 2010) (“The
underlying constitutional standard, however, is no different [in an
as-applied challenge] th[a]n in a facial challenge.”). Here, the
substantive law requires us to look at what the regulation says.
14
law, by its terms, discriminates based on content, we apply
strict scrutiny “regardless of the government’s benign motive,
content-neutral justification, or lack of ‘animus toward the
ideas contained’ in the regulated speech.” Id. at 2228 (citation
omitted). According to Reed, Ward “had nothing to say about
facially content-based restrictions.” Id. To the extent our
decision in Republican National Committee looked to the
purpose of a law that regulated content on its face, Reed
forbids us from following Republican National Committee’s
course here. Because the plain terms of section 102.14
prohibit speech based on the message conveyed, the
regulation is content based regardless of its purpose.
Nor does section 102.14’s limited scope change our
conclusion. The FEC argues that section 102.14 is not content
based because PAG can still discuss candidate names
anywhere else within a project, except its title. But whether a
burden on speech leaves open alternative means of expression
does not factor into whether a speech ban is content based.
United States v. Playboy Entm’t Grp., 529 U.S. 803, 812
(2000) (concluding that, when evaluating whether a law is a
content-based speech restriction, it is “of no moment that the
statute does not impose a complete prohibition”). Rather, the
availability of alternative avenues of expression is often
relevant to a wholly separate question: once we determine that
a law is not content based, we look to its scope to decide
whether the law nevertheless overly burdens speech. See
United States v. Grace, 461 U.S. 171, 177 (1983) (explaining
that the government may regulate the time, place, or manner
of protected speech where the law is “content-neutral,”
“narrowly tailored,” “and leave[s] open ample alternative
channels of communication”). At any rate, the FEC
understates the importance of a title. The title is a critical way
for committees to attract support and spread their message
because it tells users that the website or Facebook page is
15
about the candidate. Without a candidate’s name, the title
does not provide the same signaling to the audience. Allowing
a committee to talk about a candidate in the body of a website
is of no use if no one reaches the website. Cf. McCullen, 134
S. Ct. at 2536-37.
Because section 102.14(a) restricts political speech based
on its content, the FEC may enforce the regulation only if it
passes strict scrutiny. Accordingly, the government must
show the restriction is narrowly tailored to a compelling
governmental interest. Reed, 135 S. Ct. at 2231; see Gonzales
v. O Centro Espirita Beneficente Uniao do Vegetal, 546 U.S.
418, 429 (2006) (“[T]he burdens at the preliminary injunction
stage track the burdens at trial.”). If a less restrictive
alternative for achieving that interest exists, the government
“must use that alternative.” Playboy Entm’t, 529 U.S. at 813.
The government fails to meet its burden.
We assume that the government has a compelling interest
in avoiding the type of voter confusion identified by the FEC.
See Burson v. Freeman, 504 U.S. 191, 199 (1992) (plurality
opinion). Here, the FEC reasonably fears that voters might
mistakenly believe an unauthorized committee’s activities are
actually approved by a candidate if the committee uses the
candidate’s name in its title. But there is a substantial
likelihood that section 102.14 is not the least restrictive means
to achieve the government’s interest.
For example, as amicus pointed out, the FEC could
require a large disclaimer at the top of the websites and social
media pages of unauthorized committees that declares, “This
Website Is Not Candidate Doe’s Official Website.” The
Supreme Court regularly views such disclosure requirements
as less restrictive alternatives to “flat bans” on speech.
McCutcheon v. FEC, 134 S. Ct. 1434, 1460 (2014) (plurality
16
opinion); see also Citizens United, 558 U.S. at 369. But the
FEC rejected proposals to have “stronger, or larger,
disclaimers, in place of the overall ban.” 59 Fed. Reg. at
17,268. Its only reason for doing so was that it “believe[d]
that such an approach could be more burdensome than the
current ban, while still not solving the potential for fraud and
abuse in this area.” Id. The FEC offered no evidence that
larger or differently worded disclosures would be less
effective at curing fraud or abuse than a ban on speech. Nor
did the FEC make an effort to explain why such disclosures
would be more burdensome. Without more reasoning, it is
“difficult to assess” the merits of the FEC’s conclusions.
United States v. Alvarez, 132 S. Ct. 2537, 2551 (2012)
(plurality opinion). What is clear, however, is that the FEC
“must present more than anecdote and supposition” to support
a regulation subject to strict scrutiny. Playboy Entm’t, 529
U.S. at 822; Nixon v. Shrink Mo. Gov’t PAC, 528 U.S. 377,
392 (2000) (“We have never accepted mere conjecture as
adequate to carry a First Amendment burden[.]”). Where the
“record is silent as to the comparative effectiveness of . . . two
alternatives”—one of which burdens more speech than the
other—the more burdensome restriction cannot survive strict
scrutiny. Playboy Entm’t, 529 U.S. at 826.
Because the FEC has not shown that its speech ban is the
least restrictive means of achieving the government’s interest,
there is a substantial likelihood that section 102.14 fails strict
scrutiny and violates the First Amendment as applied to PAG.
B
In First Amendment cases, the likelihood of success “will
often be the determinative factor” in the preliminary
injunction analysis. Joelner v. Vill. of Wash. Park, Ill., 378
F.3d 613, 620 (7th Cir. 2004). And so it was in the district
17
court here. Having concluded that PAG’s merits challenges
were unlikely to succeed, the district court found nothing to
support a preliminary injunction among the remaining factors.
Because we see likely success in PAG’s constitutional
challenge, we view more favorably PAG’s arguments
regarding irreparable injury, the balance of the equities, and
the public interest.
PAG has demonstrated that it will likely suffer
irreparable injury if we do not provide preliminary relief.
Without such relief, PAG cannot include candidate names in
its website or social media page titles during this election
cycle. The loss of First Amendment “freedoms, ‘for even
minimal periods of time, unquestionably constitutes
irreparable injury.’” Mills v. District of Columbia, 571 F.3d
1304, 1312 (D.C. Cir. 2009) (quoting Elrod v. Burns, 427
U.S. 347, 373 (1976) (plurality opinion)).
The remaining two factors also favor PAG. The balance
of the equities weighs the harm to PAG if there is no
injunction against the harm to the FEC if there is. See Winter,
555 U.S. at 25-26. And in this case, the FEC’s harm and the
public interest are one and the same, because the
government’s interest is the public interest. See Nken v.
Holder, 556 U.S. 418, 435 (2009) (holding that, in the context
of a stay, assessing the harm to the opposing party and
weighing the public interest “merge when the Government is
the opposing party”). The FEC contends that a preliminary
injunction will undermine the interest that both the
government and the public have in limiting fraud, abuse, and
confusion. But there is always a strong public interest in the
exercise of free speech rights otherwise abridged by an
unconstitutional regulation and, without a preliminary
injunction, PAG is unable to exercise those rights during this
election cycle. See Gordon v. Holder, 721 F.3d 638, 653
18
(D.C. Cir. 2013) (“[E]nforcement of an unconstitutional law
is always contrary to the public interest.”). In addition, FECA
and its accompanying regulations do much to limit voter
confusion over the source of a message. Communications
from committees must disclose whether they are authorized or
unauthorized and who paid for the communication, even in
their websites. See 11 C.F.R. § 110.11. Those disclosures
must also be “clear and conspicuous” to give readers
“adequate notice.” Id. § 110.11(c)(1). The FEC’s website also
contains a publicly searchable list of all political committees
and their status as authorized or not. 6 Given these tools to
avoid voter confusion, the public’s interest in protecting First
Amendment rights and PAG’s ability to exercise those rights
outweigh any interest in the continued enforcement of section
102.14.
IV
We reverse the district court’s denial of PAG’s motion
for a preliminary injunction and remand for the district court
to enter a preliminary injunction enjoining the application of
11 C.F.R. § 102.14(a) against PAG’s websites and social
media pages.
6
Federal Election Commission, New Committee Registrations,
http://www.fec.gov/data/Form1Filer.do?format=html (last visited
July 15, 2016).